Legal costs mount in Sarasota sand battle

ROGER DRUINreprinted with permission of Siesta Sandwww.siestasand.net

Peter van Roekens and coastal scientist Richard Gilmore went out on Big Pass with Captain Paul Oversmith on an evening in late July. They were on the lookout for speckled trout, and they discovered the fish were mating in Big Pass and the juvenile trout were using the seagrass beds.

“That mating ground would be destroyed,” van Roekens, chair of Save Our Siesta Sand2 (SOSS2) told Siesta Sand, about the U.S. Army Corps and City of Sarasota’s proposed joint project to dredge Big Pass for sand to renourish a large swatch of Lido Beach.

The specific information van Roekens and Gilmore documented on speckled trout, during the July trip, was later presented during an administrative hearing that is the latest twist in the contentious battle over the future of the pass. It’s been noted that the Army Corps plan to mitigate any seagrass destruction from the Big Pass dredging at a distant mitigation point in Manatee County — a move that would not likely counter the negative impact to the population of speckled trout and other fish that feed on them. The reasons are twofold: first is that Perico Preserve is near a fresh water river, which is inimical to spawning sea trout. And second, it is highly unlikely that any of the sea trout will migrate the 18 plus miles from Big Pass to the preserve. As Gilmore said, “No one has told them!

The Army Corps project — which would place 1.2 million cubic yards cubic yards of Sand on Lido Beach — is designed to protect a vulnerable stretch of shore on Lido Key. A public affairs specialist with the Army Corps’ Florida district tells Siesta Sand the purpose of the Lido Key Hurricane and Storm Damage Reduction project is to reduce future storm damage and maintain the recreational qualities of Lido Beach. (Note: 1.2 million cubic yards is the number the Army Corps continues to report; however, in realty 1.7 million cubic yards can be dredged from Big Pass based on the documentation associated with the joint permit application submitted to the Florida Department of Environmental Protection)

But mounting concerns about the project’s impacts on nearby areas have arisen, and a coalition of organizations spearheaded by the Siesta Key Association (SKA) and SOSS2 have filed lawsuits to stop the plan. They say dredging Big Pass, which has never occurred before, will put their barrier island’s renowned beaches and shoreline at risk. SKA and SOSS2 have led a well-organized challenge to the Army Corps project —culminating thus far in the Florida administrative hearing, held starting Dec. 12, 2017, and running for five days in what Siesta advocates described as a “David versus Goliath” legal proceeding.

Administrative law judge Bram D.E. Canter is expected to rule in the administrative hearing by March, or April. Catherine Luckner, Vice President of SKA, describes the “David versus Goliath” atmosphere in the courtroom during the administrative hearing.

Combined, SKA and SOSS2, the challengers, had two lawyers and a legal assistant taking on the legal wrangling of the hearing.

Conversely, the side representing the project — including legal staff for the City of Sarasota, the Army Corps, and the Lido Key Residents Association — had a larger presence in the courtroom where the hearing was held. “The other folks had four tables,” and well over 10 legal representatives, Luckner told Siesta Sand.

Legal costs mount

In terms of legal costs, SKA and SOSS2 have invested thousands in their efforts thus far to protect the pass.

SOSS2 has spent over $200,000 since it first contested the project in 2014.More funding will be needed when this case goes to appeal no matter which side wins, and the SOSS2 continues to accept donations at www.soss2.com/donate.

The Siesta Key Association has exceeded $170,000 in 2017 alone, when it was most active in the efforts involving the administrative hearing. Luckner noted Safriet worked with the group to keep legal costs down — including not charging for his legal assistant. Several months ago, the organization launched a specific website [skedf.org] for its Siesta Key Environmental Defense Fund that helps donors know how much has been raised thus far; skedf.org is a Tax Exempt charitable organization. The Fund will be a ‘forever’ entity as part of SKA’s protection of the environment and structures of Siesta Key.

“We are fortunate that donors initiated a new $10,000 Matching Fund.We hope all able, will donate again through skedf.org.For all donations up to $10,000, the matching fund doubles anyone’s donation,” Luckner added.

Both groups deposed expert witnesses, such as Gilmore, to speak about the project and its anticipated impacts.

In addition, there are likely to be additional legal costs associated with a secondary hearing in state court, a process that Luckner says is a backup option, or an appeal of the administrative hearing.

“Whoever loses this will obviously appeal,” van Roekens added. And though van Roekens doesn’t expect the Siesta side to lose, they will have to be there to challenge the appeal.

During one interesting turn in the administrative hearing, Luckner recalls how experts from USF discovered what Luckner calls an error in the Army Corps coastal modeling.

“The Army Corps gave us 7 terabytes of data, and we had two experts from USF who were looking at all this data and saw the error,” Luckner said.

The Army Corps modeling had a default setting that accidently eliminated more extreme wave occurrences from the modeling, Luckner explained. As the experts uncovered the mistake — that would in turn throw off predictions made regarding sand and waves movements after the proposed dredging — the administrative law judge “listened very carefully,” Luckner said.

The Army Corps, Luckner added, was asked if representatives had notified the Florida Department of Environmental Protection or the City of Sarasota of the oversight. The answer, according to Luckner, was, No, they had not.

A public affairs specialist with the Army Corps’ Florida district said, “the Corps of Engineers stands behind our engineering model and we are awaiting the findings of the administrative law judge.”

The overall projected downdrift impacts on Siesta Key, as a result of a possible oversight could be incorrect, Luckner said. “That’s an important factor when looking at an inlet project that can impact other people’s homes, safety, and infrastructure,” the SKA Vice President said.

One projection involving possible wave height was off by two times. “What kind of faith can you put in measurements like that?” van Roekens said.

Making their case

Luckner, who is former president of SKA, says she believes the Army Corps and City of Sarasota were surprised how organized the “David” side of the courtroom had been during the hearings.

“We were organized and on top of stuff, and I think they had no idea we would be that prepared,” Luckner said. As a result of this miscalculation, the presentation by the Army Corps was fairly brief, allowing the parties challenging the permit to provide more information to the judge.

Big Pass is an untouched natural asset that’s part of the allure of the coastal region, Luckner says, and should be protected. Conversely, people don’t travel to Tampa Bay, for instance, because they want to “go into a lovely bay.”

Luckner is hopeful that the judge will at least order the Army Corps to modify its project or revise its engineering and design.

Van Roekens says SOSS2 is committed to fighting for Big Pass, even if that means going to federal court, if “we lose at the state level.”